United States District Court, S.D. Florida
CECILIA M. ALTONAGA, UNITED STATES DISTRICT JUDGE
CAUSE came before the Court on Defendants, Gizmodo
Media Group, LLC (“Gizmodo”) and Katherine
Krueger's (“Krueger['s]”) Motion for
Summary Judgment [ECF No. 155] submitted with their Statement
of Undisputed Material Facts (“Defs.' SOF”)
[ECF No. 156]. Defendants have submitted the Declarations of
Krueger [ECF No. 157], Timothy Marchman [ECF No. 158], and
Aleksander Chan [ECF No. 159] in support of the
Motion. Plaintiff, Jason Miller, filed his
Response [ECF No. 172] as well as his Statement of Facts
(“Pl.'s SOF”) [ECF No. 171], to which
Defendants filed a Reply [ECF No. 177] and Counterstatement
to Plaintiff's Additional Facts [ECF No. 178].
Court has carefully considered the Amended Complaint [ECF No.
5], the parties' submissions, the record, and applicable
law. Because there are no material facts in dispute that
could defeat Defendants' affirmative defense raising the
New York fair report privilege, codified in section 74 of the
New York Civil Rights law, the Motion is granted, and summary
judgment will be entered by separate order.
a defamation case. (See generally Am. Compl.).
Plaintiff is a political strategist and commentator.
(See Defs.' SOF ¶¶ 2, 39). Krueger is
the managing editor of a news website, Splinter.
(See id. ¶ 52). Gizmodo is
Splinter's corporate parent. (See Am.
Compl. ¶¶ 19-20). Plaintiff alleges Defendants
defamed him by publishing an online article (the
“Article”) containing false accusations made
against him in a confidential court filing and inaccurately
characterizing the accusations. (See generally id.).
The material undisputed facts follow.
worked on campaigns, in the administrations of numerous
pro-life politicians, and as a political commentator on CNN.
(See Defs.' SOF ¶¶ 2,
The events at issue in this case began in the summer of 2016,
when Plaintiff served as a Senior Communications Advisor for
the 2016 presidential campaign. (See id. ¶ 4).
In August 2016, Plaintiff hired Arlene Delgado
(“Delgado”) to work as a spokesperson for the
campaign. (See id. ¶ 11). Delgado is a Harvard
Law School graduate and member of the New York bar. (See
id. ¶ 8). She has appeared on numerous radio and
television shows and has been published in multiple news
outlets. (See id. ¶ 9).
October 2016, Plaintiff and Delgado began an affair. (See
id. ¶¶ 15-16). The affair resulted in
Delgado's pregnancy. (See id. ¶ 25). In
July 2017, Plaintiff and Delgado's son was born. (See
id. ¶ 41). Articles about the affair, birth of
Plaintiff and Delgado's son, and subsequent custody
dispute have appeared in publications including the
Atlantic, Talking Points Memo, the New
York Post, the Daily Mail and Vanity
Fair. (See id. ¶ 43).
The Family Court Action
2017, Plaintiff initiated a custody proceeding in Miami-Dade
County, Florida Family Court (the “Family Court
Action”). (See id. ¶ 42). On September
14, 2018, Delgado filed a document entitled
“Mother's Supplement to Mother's March 2018
Motion for Court to Consider Psychological Evaluation of the
Father” (the “Supplement”) in the Family
Court Action. (See id. ¶ 44; Krueger Decl., Ex.
9, Supplement [ECF No. 157-9]). The parties dispute whether
the Supplement has been sealed since it was filed or whether
it is publicly available. (See Defs.' SOF
¶¶ 45-50; Pl.'s SOF ¶¶ 45-50).
Supplement, Delgado accuses Plaintiff of having an affair
with and impregnating “Jane Doe” years earlier,
slipping her an “abortion pill, ” and killing her
unborn child without her consent. (Supplement
2-3). The Supplement states, in part:
summer 2018, [Delgado] was informed as follows:
1. In 2012, Mr. Miller, while working for Jamestown
Associates, was working closely with the firm's Florida
2. As part of this, Mr. Miller spent significant time in
3. Evenings with clients and colleagues sometimes entailed
steakhouse dinners followed by strip clubs and/or patronage
of escorts for some of the participants.
4. During one such evening, Mr. Miller and other
colleagues/clients visited Rachel's Gentleman's Club,
a strip club in Orlando (which also has a West Palm Beach
5. At the time, Mr. Miller was already married to his wife
(whom he married in July 2008) and had a 4-year-old daughter
(who was born in late 2008).
6. Mr. Miller met a stripper that evening, which [sic] will
be referred to herein as “Jane Doe” (Mother has
individual's full name).
7. Mr. Miller had sexual intercourse with Jane Doe
and continued a sexual relationship with her for some unknown
period of time.
8. Jane Doe became pregnant.
9. Shortly thereafter, according to Jane Doe, Mr. Miller
visited her apartment with a Smoothie beverage.
10. Unbeknownst to Jane Doe, the Smoothie contained
an abortion [p]ill.
11. The pill induced an abortion, and Jane Doe wound up in a
hospital emergency room, bleeding heavily and nearly went
into a coma.
12. The unborn child died.
(Id. (alterations added; emphasis in original)).
Supplement identifies Delgado's sources for the
information. (See Id. 4-11). It states Delgado
initially discovered the accusations from a man she met on
Twitter, who told Delgado he received the information about
Jane Doe from “multiple” sources whom he believed
were “credible.” (Id. 7 (quotation marks
in original; emphasis removed)). He cautioned the account was
“unverified by him” and he was “unable to
vouch for its veracity.” (Id.). The Supplement
states a private investigator contacted Jane Doe, but she
“was not interested in speaking out.”
Supplement further states Delgado notified a journalist after
learning of the accusations, and the journalist (1) contacted
Jane Doe via Facebook, spoke to her, her friends, and her
family; (2) traveled to Florida to investigate the story
(see Id. 9); (3) “confirmed the account
directly with the victim herself”; and (4) stated Jane
Doe's instant reaction was “‘Yes, that
happened to me - how did you know? Who told you?'”
to the Supplement, the journalist told Delgado he had
“all [he] need[ed]” to write the story
(id. (alternations added)), but the journalist had
not published a report on the story due to his editors'
concern “Jane Doe would backtrack” (id.
10-11). The Supplement states the journalist “continues
working on the report.” (Id. 11).
The Splinter Article
September 21, 2018, Krueger received a message from a source
who informed her Delgado filed the Supplement in the Family
Court Action. (See Defs.' SOF ¶ 55). The
source sent Krueger a copy of the Supplement. (See
id.). Krueger confirmed with Delgado the document was an
authentic copy of the Supplement. (See id.
¶¶ 56, 82; Krueger Decl. ¶ 53).
reviewed the Supplement in full and prepared to write a
report on it. (See Defs.' SOF ¶ 59; Krueger
Decl. ¶ 56). She intended to write “a straight
forward report on a filed court document” and to
“closely track the allegations made in the
Supplement.” (Kreuger Decl. ¶ 57). Prior to
drafting, Krueger sent an electronic message to her editor,
Timothy Marchman, stating, “I think I'm mostly
gonna let [the allegations] speak for themselves? And just
hew closely to the doc as filed . . . .” (Id.,
Ex. 10, Krueger/Marchman Electronic Correspondence [ECF No.
157-10] 7 (alterations added)). Marchman responded,
“[this is] one to play straight.” (Id.
drafted the Article. (See Defs.' SOF ¶ 80;
Krueger Decl. ¶ 59). It was then edited by
Splinter Editor-in-Chief Aleksander Chan and Deputy
Editor Jack Mirkinson. (See Defs.' SOF ¶
85; Krueger Decl. ¶ 59).
September 21, 2018, Splinter published the Article,
titled “Court Docs Allege Ex-Trump Staffer Drugged
Woman He Got Pregnant With ‘Abortion Pill, '”
on its website. (See Krueger Decl. ¶ 59;
id., Ex. 1, Article [ECF No. 157-1]). The opening
paragraph of the Article states:
The ongoing custody battle between former Trump campaign
operatives Jason Miller and A.J. Delgado has taken another
nasty turn: In an explosive new court filing, Delgado's
legal team alleges that Miller - prior to their [sic] own
high-profile extramarital romance - carried out an affair
with a woman he met at an Orlando strip club. Additionally,
the court documents claim, when the woman found out she was
pregnant, Miller surreptitiously dosed her with an abortion
pill without her knowledge, leading, the woman claims, to the
pregnancy's termination and nearly her death.
(Article 2). The Article provides background information on
Plaintiff and Delgado's affair. It includes hyperlinks to
articles in the Atlantic and Page Six about
the relationship, child, and custody battle. (See
id. 3-4). The Article states the Supplement was
“filed in Miami-Dade Circuit Court on Sept. 14 and
obtained by Splinter” and “Delgado confirmed the
document's authenticity to Splinter but declined to
comment further.” (Id. 3).
Article describes how Delgado obtained the information she
includes in the Supplement. It states Delgado initially
learned of the story from a man she sought out on Twitter,
after he “tweeted cryptic messages at Miller
referencing the Orlando strip club by name and saying [he]
want[s] his ‘unethical immoral deals' to come to
light.'” (Id. 4 (alterations added)). The
Article states Delgado relayed the allegations to a